Court Rejects Fair Use Claim, Orders YouTube to Unmask Anime Recap Channels * TorrentFreak

Court Rejects Fair Use Claim, Orders YouTube to Unmask Anime Recap Channels

Japanese publishing giant KADOKAWA is known for responding aggressively to copyright infringers, including creators who share narrated recaps of its content on YouTube.

These channels are highly popular and generate many millions of views. While they only use clips from anime shows, often with narration and commentary, the publisher equates it to piracy.

In January, KADOKAWA tried to unmask three YouTubers, each with hundreds of thousands of subscribers, through a U.S. federal court. The company requested a DMCA subpoena, compelling YouTube to expose their identifying information.

These subpoenas are often a mere formality and only need a signature of a court clerk to be issued. However, in this case, YouTube could not simply hand over the requested information as three of the targeted YouTubers filed a motion to quash.

Motion to Quash

The three creators argued that their YouTube channels were not simple piracy operations. Instead, they described their videos as Korean-language commentary, review, and analysis content aimed at a Korean-speaking audience.

"The videos used selected portions of the underlying works in connection with Korean narration, explanation, summary, commentary, and creator-specific presentation. They were not uploaded as full episodes or as raw reproductions of the copyrighted works," they wrote.

Bongseop Kim’s channel

The three channels are certainly not small fish. Bongseop Kim and Woohyuk Yang both have more than half a million subscribers, while Youngyoon Ko is not far behind with nearly 350k followers.

All channels feature hundreds of videos, covering a wide variety of anime content. This includes the contested KADOKAWA titles, as summarized in the table below.

Creator (Channel)<br>Targeted Anime Title<br>Content Format

Bongseop Kim

A Ninja and an Assassin Under One Roof<br>Featured an original mascot character ("Narong") with Text-to-Speech (TTS) dialogue and custom scripts.

Woohyuk Yang

Oshi no Ko<br>Korean-language anime review and media analysis featuring voiceover narration.

Youngyoon Ko

Once Upon a Witch’s Death<br>Review/recap featuring custom Korean subtitles, reactions, sound effects, and plot commentary.

In their defense, the creators argue that, instead of competing with the original content, they are driving traffic to it.

All three included links to Korea’s licensed anime streaming platform Laftel in their video descriptions and pinned comments. According to analytics data shared by Kim, he generated 114,494 click-throughs to Laftel from his channel, with an 82 percent engagement rate.

The creators also pointed out that KADOKAWA had taken down their videos before, but that it failed to take any legal steps when they filed counter-notifications. As a result, the videos were restored by YouTube. This could mean that the current effort is used as a pressure tactic, they argue.

"Such repeated conduct suggests that the present subpoena may not be directed toward a genuine intent to pursue litigation, but rather reflects an overbroad or coercive use of the DMCA process," the creators note.

Court Orders Fair Use Briefing

In April, the case took an unusual procedural turn when Judge Trina L. Thompson ordered both sides to submit supplemental briefing specifically on fair use. That’s rare in a DMCA subpoena case.

The creators, who filed their response after the deadline, again pointed out that they only used limited content without competing with the official releases.

Bongseop Kim, for example, noted that his video reviewed episode 4 of A Ninja and an Assassin Under One Roof, using roughly 15 percent of that episode, according to his filing.

Fair use defense

In response, KADOKAWA’s attorneys pointed out several procedural errors. Since two of the three videos were no longer online, the company argued that the remaining one did little more than summarize the plot.

KADOKAWA’s brief also pointed out that the creators’ ‘pro se’ defense incorrectly argued that DMCA subpoenas should not permit unmasking where the alleged infringement is disputed and the videos have been removed.

That "reads like an AI hallucination, because it is wholly unsupported by the statute or case law," the company’s attorneys wrote.

Narration and Summary Are Not Fair Use

In an order issued on July 17, Judge Thompson denied the motion to quash. The court found the factual record "sparse," partly because the videos had been made private, and concluded that the creators’ videos "describe and narrate" the copyrighted work rather than criticize, parody, or alter it.

"Unlike criticizing, parodying, or otherwise altering copyrighted work, Movants’ treatment of Petitioner’s work is not the sort of creative and transformative use of a copyrighted work that the law permits," the order states.

The ruling concludes that the creators...